Archive for Tuesday, August 14, 2007

Tiller asks for new judge in abortion case

August 14, 2007


— Attorneys for one of the nation's best-known abortion providers filed a motion Monday asking for a change in the presiding judge, an abortion opponent who once accused the doctor of "defying legal and moral authority."

Sedgwick County District Judge Anthony Powell previously served in the Kansas House and was among the Legislature's most vocal abortion foes, once calling abortion "the slaughter of the innocents." Shortly after the enactment of a 1998 law restricting late-term abortions, he accused Dr. George Tiller of breaking it.

Court papers, filed Monday in Sedgwick County District Court, do not give a reason for the request to remove Powell from all pending and further matters. An attorney for Dr. George Tiller declined to elaborate.

"Kansas law prohibits us from stating the grounds in the initial motion, and thus we can't comment further," defense attorney Lee Thompson said Monday.

But the court filing represents a complete about-face from Friday's hearing when Thompson, when questioned by Powell on whether attorneys objected to him presiding in the case, replied, "We trust the court's judgment in that regard."

Defense attorney Laura Shaneyfelt said Monday that Thompson's comments at the hearing concerned whether Powell ought to allow amicus briefs to be filed. She said Thompson meant he trusted the court's judgment in not being overly influenced by a brief filed on behalf of his former legislative colleagues.

Attorney General Paul Morrison declined to comment Monday on the defense motion, his spokeswoman Frances Gorman said, adding later that prosecutors have no current plans to ask for the judge's removal.

Tiller was charged with 19 misdemeanors in June. Morrison alleges the doctor failed to get a second opinion on some late-term abortions from an independent physician, which the late-term law requires. Tiller maintains his innocence, and his attorneys are challenging the law.

Powell had an hourlong hearing Friday on the law's constitutionality but doesn't plan to rule until at least next month. If Powell upholds the statute, Morrison's office can move toward a trial. If Powell strikes it down, a trial will be delayed until appeals of such a ruling are resolved.

The case was assigned to Powell by Judge Gregory Waller, the county's chief criminal judge. Waller said he didn't know about Powell's past legislative activities and picked him because he was "the most available" for a hearing.

Powell did not return a message left at his office Monday for comment.

But Michael Hoeflich, a law professor at Kansas University, said Powell is entitled to his anti-abortion opinions as long as he judges the case fairly.

"Judges are going to be human - they are going to have opinions," he said. "I don't think that is an ethical issue."

Hoeflich said normally a judge is asked to remove himself from a case because of a conflict of interest such as prior representation or because of a financial interest - and it does not seem that either of those two things are in play in this case. He added, however, that defense attorneys are doing exactly what he would expect them to do.

Defense attorneys likely will base their request for a new judge on a canon in the American Bar Association that calls for a judge to disqualify himself when his impartiality might be reasonably questioned.

"It is not simply that he is anti-abortion," Hoeflich said. "It is they believe they have evidence he is particularly prejudiced against Tiller."


jmadison 10 years, 9 months ago

Justice Ginsburg, a former attorney for Planned Parenthood, has never recused herself from a case involving abortion.

Uhlrick_Hetfield_III 10 years, 9 months ago

This is the best judge Morrison could possibly have for this trial and he has apparently figured that out also.

packrat 10 years, 9 months ago

I loathe Tiller but I do believe he has a point.

heysoos 10 years, 9 months ago

jmadison, I've been doing some research, and I can't find anywhere that notes that Ginsburg worked for PP. Can you help us out with a link or some evidence that this is true because, frankly, I think you made this up...

SettingTheRecordStraight 10 years, 9 months ago

Agnostik, I want Tiller shown guilty for his crimes no matter who's the judge.

dirkleisure 10 years, 9 months ago

Powell's pro-life beliefs are not the issue. Judges are allowed to have opinions about legal arguments.

However, Powell's comments about the defendent himself are an issue. Judges are not allowed to have opinions about their fellow citizens.

Cait McKnelly 10 years, 9 months ago

jmadison please give a source for your statement about Ruth Bader Ginsburg. She had done volunteer work for the ACLU prior to her appointment to the bench and written and coauthored several books and articles about sex discrimination prior to becoming a judge but at no point can I find that she ever represented PP. The big difference here is that Powell served in the legislature before becoming a judge and is now being told to adjudicate a law that he co-wrote. Although no one is saying that he can't do this fairly, common sense says this a clear conflict of interest. As a judge he should have recused himself before this ever even became a public issue. I'm most disturbed by the statement of the Chief Judge Gregory Waller. The fact that he wasn't even aware of Powell's involvement with the law speaks volumes. I see this going to SCOTUS based on the Constitutional separation of the branches of government if this judge is not removed.

imastinker 10 years, 9 months ago

I find it hard to believe that there will be anyone that does not have a strong opinion one way or the other on this topic. I do not believe that judges should make decisions based on anything but law. Unfortunately this happens all the time.

Being Pro-Life or Pro Choice should NOT make someone unfit to be on the bench. Being a judge or public figure should not make someone unable to be an activist either. We have appeals for this type of thing if the judge is off the wall with his judgement.

SettingTheRecordStraight 10 years, 9 months ago


An incongruous analogy, to say the least.

Tychoman 10 years, 9 months ago

Whether he broke the law or not, he should have a new judge.

SloMo 10 years, 9 months ago

Does W get the same? Sure, and we'd love for him to get his day in court!

thusspokezarathustra 10 years, 9 months ago


Please wipe the spittle from your chin.

Sigmund 10 years, 9 months ago

"But Michael Hoeflich, a law professor at Kansas University, said Powell is entitled to his anti-abortion opinions as long as he judges the case fairly." Michael Hoeflich is exactly correct.

Do any of you remember the "Summer of Mercy" when Operation Rescue held Wichita hostage for six weeks as they protested and 2,600 people were arrested? Anyone? No?

"In 1991, clinic blockades and violence were on the upswing. Indeed, Operation Rescue tagged that summer the "Summer of Mercy," and placed a bull's eye on Wichita, Kansas. There, Operation Rescue's stated goal was to close abortion clinics using tactics one federal appeals court described as "fear, harassment, intimidation and force."

"Judge Kelly employed a federal law intended to protect individuals deprived of their fundamental rights. To stop Operation Rescue from blockading the clinics and physically harassing patients and staff, he later toughened his injunction and ordered federal marshals to help keep the clinics accessible. The Justice Department, with then-Deputy Solicitor General John Roberts at the forefront, told Kelly that he had overstepped his bounds the massive blockades were a local and state matter, and federal law offered no protection for women trying to enter the clinics."

Eventually Kelly prevailed despite pressure from Justice, but something that Mother Jones fails to mention in their praise of Judge Kelly and their diatribe against Judge Roberts (yes that Judge Roberts) is that The Honorable Patrick Kelly, was a practicing Catholic with strong Pro-Life beliefs and a sister who was a Catholic Nun!

Of course that was at a time when Americans expected their Judges to actually follow the Law even if it was contrary to their personal beliefs, something that neither the Left nor the Right seems willing to risk these days. Shame really, we are diminished as a society because of it.

Uhlrick_Hetfield_III 10 years, 9 months ago

Sigmund's point is a good one. Going to court should amount to something more than shopping for the right judge. No judge,of any persuasion, should allow their beliefs to alter the manner in which the law is applied. If they do, there is no rule of law, only the rule of men and tyranny.

If the law itself is a bad one, change it, but enforce it until it is changed, or there will be no pressure to change it.

Law is supposed to raise the level of abstraction so that what is judged is conduct and not the individual. That's why you have Jewish ACLU lawyers defending the right of the American Nazi Party to march in Skokie.

Uhlrick_Hetfield_III 10 years, 9 months ago

Ginsburg was an attorney for the ACLU and wrote a very significant dissent in a case involving Planned Parenthood.

Uhlrick_Hetfield_III 10 years, 9 months ago

Oops, hit the button too early. Bottom line, even searching conservative articles on Ginsburg's dissenting opinion I found no reference to her representing Planned Parenthood.

staff04 10 years, 9 months ago

According to the Congressional Research Service, jmadison made that up. jmadison, please don't post lies. Your credibility isn't great on this site, but now it is nonexistant as you have exposed yourself as a liar.

Crispian Paul 10 years, 9 months ago

right_thinker (Anonymous) says:

"It is they believe they have evidence he is particularly prejudiced against Tiller."

Beautiful! Let's hand-pick a pro-choice judge for Georgey.

The members of the elite Tiller political donation crowd are reviewing their accounts recievable to see how much they want to continue to help this butcher.

R_T, as usual, you miss the point completely. Is it not the American way to have a fair trial? How can one possibly consider the trial of a doctor (providing a legal service, but that's an entirely separate issue) by a judge who has an activist stance one way or the other? I don't think that the issue is whether or not the judge is pro-choice or not. It is about whether or not the trial judgement could be overturned based on information showing the judge very well is not even remotely objective.

What would you say, R_T, if the judge HAD tried the case and then any lawyer worth his or her salt got an immediate appeal granted on the basis of an issue that could have been made moot by the reassignment of this case? You would only have some other complaint I am sure.

Settingtherecord.....Despite your OPPINION, the services provided by Tiller are legal and until such time that they are not, Tiller cannot be charged for doing his job. His charges do not have to do with what he does for a living but with whether or not he made an error that could be deemed illegal.....

Crispian Paul 10 years, 9 months ago

right_thinker (Anonymous) says:

"Tiller is innocent until proven guilty, just like the rest of us:." Ag

Does W get the same?

JHC Right_Thinker.....what the hell does Anostick's point have to do with GWB? Oh, that's right, nothing......anytime someone makes a valid point you do not agree with, you throw up the "LIberals HATE GWB" smoke screen, relevant or not......That's it. I have deemed everything you say to be completely irrelevant until you can prove to me that you can address a valid point without bringing up what you surmise are other's points of view. Go to your room.

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